Fraudster sentenced to prison for 15 months

R v McKenzie [2013] EWCA Crim 1544

McKenzie and two co-accused concocted a bogus insurance claim based on a fictitious road accident in which they claimed to have sustained whiplash injuries.  Their claims amounted to £33,000.  They were charged with and convicted of fraud.  The police investigations revealed that D was part of a ring of 70 people who perpetrated these scams and that he had committed 24 similar frauds.

McKenzie was sentenced to 15 months imprisonment and ordered to pay £3,242.00 towards the prosecution costs.  His appeal against sentence was dismissed but the costs contribution order was reduced to £1,500 to take into account his reduced financial circumstances.

This case demonstrates that the law is perfectly capable of protecting insurer’s interests where it is properly applied.  No doubt this prosecution was made possible due to improved intra-insurer co-operation and the use of an anti-fraud database.  Further progress could be made if insurers co-operated with the legal profession in tackling fraud.  Insurers need to be more proactive bringing private prosecutions where the Police don’t.  The insurance industry’s current policy of disparaging genuine whiplash injury victims and portraying minor whiplash injury claims as being synonymous with a fraudulent claim is as unfounded as it is disingenuous.

School not liable for schoolboy’s 'selfie'

Pierce (a child by his litigation friend Annette Pierce) v West Sussex County Council [2013] EWCA Civ 1230

A school authority was not liable for the cut sustained by a nine year old who injured his own hand whilst taking a swipe at another boy.  He missed his aim, landing his blow on the underside of a water fountain that happened to have a sharp edge. 

The trial judge had held that as the edge was sharp it had presented a foreseeable danger and that in the absence of a risk assessment the LEA was liable.  The LEA appealed successfully.

Any school will have numerous edges that might injure a child who strikes them. The school was not liable for this self inflicted injury.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

No abuse of process by claimant where Coroner’s office advises disposal of post mortem samples

Matthews v Collins and others [2013] EWHC 2952 (QB)

The outcome of this particular decision runs against the general tide due to exonerating circumstances peculiar to the case, which  included the Coroner’s office providing misleading information.  It should be seen as an exception; not the rule. 

It is vital to ensure that in a fatal industrial disease claim that all relevant post mortem evidence is preserved, both documentary and real evidence such as tissue samples.  There have been two recent first instance decisions where a failure to preserve such evidence resulted in the claim being struck out: Weaver (Widow & Personal Representative of Harry L Weaver, deceased) v Contract Services Division Ltd considered [2009] (unreported decision of the Senior Master, 03.09.2009) and  Irene May Currie v Rio Tinto Plc and others [2009] (unreported decision of Master Eastman, 06.10.2010). 

In Matthews, Swift J concluded her judgment with the following postscript:

‘I propose to send a copy of this judgment to the Chief Coroner with a request that he considers advising all Coroners that, in cases where there has been a verdict that a contributory cause of death was industrial disease, any communication to the deceased’s family about the disposal of histological samples should contain advice that, if a claim in respect of the deceased’s death is pending, they should consult their solicitor before giving authority for disposal. 

In the light of what has happened in this case, it would be good practice also for solicitors instructed by claimants in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation from those solicitors that the samples are not required for the purposes of the claim.’

Whilst it is to be hoped that in future Coroner’s officers will be better informed about the need to preserve tissue samples in this kind of case, practitioners would be wise not take any chances. 

A more detailed commentary is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.

Nursery liable for back injury caused by defective cot mechanism

Cooper v Bright Horizons Family Solutions Ltd [2013] EWHC 2349 (QB)

This claim predates section 69 of the Enterprise and Regulatory Reform Act 2013 that removed the actionability of breaches of health and safety legislation.  It is based on breaches of the Provision and Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992.

However, it is one of those cases that would probably have succeeded in common law negligence as the trial judge found there had been a real and foreseeable risk of injury to the claimant in stretching over the high sides of a cot to lift out a baby.  The cot was designed for the sides to slide down but the mechanism was broken.

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112.

Regulation 2 (a) Asbestos Industry Regulations 1931 applied to a visiting lorry driver

McDonald v (1) Dept for Local Government (2) National Grid Electricity [2013] EWCA

Lord Justice McCombe’s judgment in this case rewards careful reading.  This mesothelioma claim resulted in a decision that is notable for three reasons: 

• In the way it illustrates the wide remit of the absolute liability imposed under the 1931 Regulations where there was (a) no foreseeable risk, (b) no breach of duty at common law, (c) no liability under section 47 (1) of the 1937 Act for dust of such a character as was “likely to be injurious” and (d) no infringement of the ‘substantial quantity of dust’ provisions of section 47 (1) of the 1937 Act.

• It is also significant because it seems this claim only succeeded under the 1931 Regulations because the Court of Appeal felt constrained to follow the Cherry Tree ratio, under the Young v. Bristol Aeroplane Co Ltd [1944] KB 718 principle by which the Court of Appeal is bound by an earlier decision.  The Court of Appeal appears to have had some sympathy with the Defendant’s contentions that the Cherry Tree was wrongly decided and that the Asbestos Industry Regulations 1931, as their title implies, are directed to the asbestos industry alone.  Accordingly, it is possible that when this appeal is heard by the Supreme Court, it may disapprove of the Cherry Tree decision and restore a narrower scope to the 1931 Regulations; one that restricts its application to industrial manufacture of asbestos products, as opposed to their use elsewhere.

• Finally, the case provides an almost textbook illustration of the differences, not only between common law and statutory duties of care but also between the qualified / relative duty of care under generic health and safety legislation on the one hand, where the common law concept of reasonable foresight is relevant, and the asbestos specific regulations that impose an absolute duty, on the other.  In the latter case, these regulations are subject only the defence of ‘practicality’, and that only in the sense of that the precautions stipulated should be impracticable to implement from a physical viewpoint and where an appreciation of the risk presented by the exposure to asbestos is not required.

Brief facts:

The claimant was diagnosed with mesothelioma that claimed he had contracted during his employment during his employment as a lorry driver between 1954 and 1959.  His duties had involved collecting pulverised fuel ash from Battersea Power Station run by the National Grid Electricity Transmissions PLC.  It was claimed that he made 68 collections over the four year period.

He alleged that he was exposed to asbestos on his visits to the power station.  His case was that asbestos dust had been regularly released into the air from routine heat insulation maintenance and repair operations undertaken by others on site: preparing the asbestos mixture and in its application as a heat insulator to piping.  However, all this had occurred in locations where he had no reason to be as his role was confined to collecting and removing ash from an entirely different part of the building.  His case was that he had become friendly with some of the workers at the facility and had been free to roam and to socialise whilst waiting for collections.  The claimant’s statement gave the impression that he had been regularly exposed to clouds of asbestos dust. 

The claimant contended that D1, his employer, was liable at common law for failing to take reasonable care for his safety and for failing to warn him of the dangers involved.  His claims against D2 were founded on three separate causes of action:

• Breach of the common law duty of care,
• Breach of s47 (1) Factories Act 1937,
• Regulation 2 (a) Asbestos Industry Regulations 1931.

The trial judge did not accept that the claimant had been exposed to the degree of exposure he claimed.  HHJ Denyer QC.  He found that it had been only modest, on limited occasions and for short periods.

As to the allegation of breaches of the common law duty, he considered Williams v University of Birmingham [2011] CWCA Civ 1242 and held that in the mid to late 1950s...

‘...it would not reasonably have been foreseen that the quantities and intensity of any asbestos dust given off to which this Claimant was exposed would be likely to be injurious or offensive to his health.’

His claim was dismissed at first instance on all three grounds.   However, he succeeded on appeal under Regulation 2 (a) Asbestos Industry Regulations 1931.

If the appeal proceeds to the Supreme Court, the decision that the Court of Appeal felt constrained to make may well be overturned

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.

DOES YOUR THIRD PARTY MOTOR INSURANCE ACTUALLY COVER YOUR USE?

In October 2011 three Court of Appeal judges delivered, unanimously, an important ruling that limits the potential scope of the compulsory third party insurance cover imposed under Part VI Road Traffic Act 1988.  

The judgment is available on the BAILII website: EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267.  

This judgment concludes that although sections 143 and 145 of the 1988 Act require all road users to take out third party insurance that is good for any use the driver might make of the vehicle, there is no corresponding duty on the part of the insurer to supply a policy that is ‘good for any use’ for the benefit of a third party claimant. In EUI this meant that the motor insurer could legitimately exclude any liability to compensate a third party injured by its policyholders deliberate act; in this case the driver's attempted suicide.

Lord Justice Ward delivered the only reasoned judgment in EUI and given his eminence and expertise, it is with great trepidation that I venture to criticise that decision and his reasoning; yet I feel compelled to do so, not least because of the profound implications it has for thousands of victims of motor accidents

Whilst Ward LJ’s judgment reviews the conventional authorities with painstaking and meticulous care, and whilst it gives careful consideration of the European Motor Insurance Directives, it does not in my view provide the correct purposive construction of Part VI Road Traffic Act 1988: one that European law requires. 

What I find interesting is that this detailed judgment appears to overlook nothing.  It considers all the relevant articles within the Directive with scrupulous care and it also takes into account the rulings by the Court of Justice of the European Union as to the scope of the third party motor insurance cover required by article 3 of the Directive.  Indeed the judgment even acknowledges the wide impact that the general application of the holistic approach adopted in C-129/94 Ruiz Bernaldez [1996] ECR 1-1929 would have for a conventional interpretation of our UK national law provision in this area.  In Bernaldez and the line of European authorities that have followed it , the European Court of Justice has repeatedly ruled that a motor insurers’ cannot rely on its policyholder’s breach of policy to avoid its obligation to compensate a third party.  This is of course without prejudice to its contractual rights against its policyholder.  Unfortunately, the EUI judgment sought to confine the binding effect of Bernaldez to sustain a restrictive interpretation of the scope of the insurers duty in this regard. 

What the Court of Appeal’s judgment effectively boils down to is that, save where expressly constrained by the 1988 Act, insurers are free to issue third party motor insurance policies replete with restrictions and limitations as to their scope and cover.  The corollary of this is that where a victim is injured by an ostensibly insured vehicle, in circumstances where the drivers use is not covered by the policy, then the driver is de facto completely uninsured.  I am convinced that this is wrong.  

It cannot be right that motor insurers operating in this lucrative captive market should be entitled to hedge their statutory liability to compensate innocent third parties in this way, so that thousands of innocent victims are forced to go cap in hand to the Motor Insurers Bureau (MIB) and to be subjected to its much less advantageous compensatory regime.

Where a motor vehicle has some insurance in place Community law permits only one exception to the insurers’ obligation to compensate a third party.  This applies where an insurer has exercised its right to exclude liability to compensate a claimant who is not just a willing passenger in the vehicle responsible for causing the injury or loss but who also has actual knowledge that the vehicle has been stolen.  The Court of Justice has repeatedly ruled that as this is the only exception countenance by the Directive to what is a general rule (that third party civil liability should be covered by insurance) and that it is one that should be interpreted strictly.  Furthermore, it has also ruled that the implications flowing from a policyholder’s breach of contract is an  issue confined to the policyholder and insurer. It has also ruled that the MIB should only become involved as a last resort, where their is no insurance at all or where the driver cannot be identified.

The  EUI ratio also undermines the original 1930 Parliamentary concept of providing a uniform compensatory guarantee for victims.  It is clear from the preface in the Road Traffic Act 1930, reproduced below, that the Government’s overriding objective was to provide a compensatory guarantee to third party victims.  I acknowledge that later revisions and amendments to the original statutory provision have had the effect of qualifying the original concept.  However, post 1973 when the United Kingdom joined the European Community, these are unlawful save where expressly authorised by Community law.   

 

Extract from the Road Traffic Act 1930

Leave to appeal this decision to the Supreme Court was granted but, no surprises here, the claim was promptly compromised.  So we are therefore left with the unfortunate legacy of this judgment.  

Given the importance of this issue, as thousands of motor accident victims are potentially affected, I have prepared a detailed point by point critique of the EUI judgment.  This is set out in my latest article in the Journal of Personal Injury Law in issue 3 of 2013: Marking the Boundary.  This article can also be accessed through Lawtel.

These matters have been drawn to the attention of the Department for Transport, which insists that the United Kingdom has fully implemented the European Motor Insurance Directives. Readers will note from my earlier posts that this is now the subject of a European Commission complaint.

THREE WEEK TIME LAPSE TOO REMOTE FOR SECONDARY VICTIM

The Court of Appeal dismissed a nervous shock claim by a daughter of a woman who died from a pulmonary emboli.  It was accepted that this complication was directly attributable to an injury sustained at work three weeks earlier and from which she was making an apparently good recovery.  The daughter did not see the original injury but she was present at her mother's death and suffered PTSD as a result.

In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 the Court of Appeal ruled that the three week interval between the original injury and its fatal sequelae broke the continuity necessary to establish legal proximity for a secondary victim. 

My case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.